FEDERAL COURT OF AUSTRALIA
Kent v SS “Maria Luisa” [2002] FCA 1207
ADMIRALTY – jurisdiction – application to set aside principal proceedings for want of jurisdiction – vessel “Maria Luisa” arrested as surrogate for “Monika” and “Boston Bay” – whether “owner” in s19(b) of Admiralty Act 1988 includes demise charterer.
Admiralty Act 1988 (Cth) s 3, s 4, s 19
Owners of the ship “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404 cited
Malaysia Shipyard v “Iron Shortland” (1995) 131 ALR 738 applied
Sandeman v Scurr [1866] 2 QB 86 cited
Swards v The Owners of the Ship “Pyungwha 36” [1996] BC 9605497 not followed
I Congreso del Partido [1978] 1 QB 500 applied
The “Father Thames” [1979] 2 Lloyd’s Rep 364 cited
GREGORY DAVID KENT v THE FISHING VESSEL “MARIA LUISA” AS SURROGATE FOR THE VESSELS “MONIKA” AND “BOSTON BAY”
NO. N 467 OF 2001
BEAUMONT J
13 SEPTEMBER 2002
SYDNEY
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IN THE FEDERAL COURT OF AUSTRALIA |
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BETWEEN: |
GREGORY DAVID KENT PLAINTIFF
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AND: |
THE FISHING VESSEL “MARIA LUISA” AS SURROGATE FOR THE VESSELS “MONIKA” AND “BOSTON BAY” DEFENDANT
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. The principal proceedings be dismissed, with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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BETWEEN: |
PLAINTIFF
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AND: |
THE FISHING VESSEL “MARIA LUISA” AS SURROGATE FOR THE VESSELS “MONIKA” AND “BOSTON BAY” DEFENDANT
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
(ON DEFENDANT’S MOTION FOR AN ORDER DISMISSING PRINCIPAL PROCEEDINGS FOR WANT OF JURISDICTION)
beaumont j:
Introduction
1 The plaintiff sues for damages in an action in rem brought against the defendant ship pursuant to the provisions of the Admiralty Act 1988 (Cth) (“the Act”).
2 The plaintiff claims, in the litigious context described below, and, in particular, in the context of s 19 of the Act, that he has a “general maritime claim” within par (c) or par (d) of s 4(3) of the Act, which defines such a claim so as to include (relevantly) claims –
“(c) ... for personal injury, sustained in consequence of a defect ... in the apparel or equipment of a ship; or
(d) a claim ... for ... personal injury ... arising out of an act or omission of ... the owner or charterer of a ship [or] a person in possession or control of a ship ... being an act or omission in the navigation or management of the ship ... .”
3 Specifically, by way of writ in rem filed on 24 April 2001, the plaintiff commenced proceedings against the fishing vessel “Maria Luisa”, the surrogate for the vessels “Monika” and “Boston Bay”.
4 The relevant person, within the meaning of ss 3 and 19 of the Act (see below), specified (as required by Rule 15(1) of the Admiralty Rules) in the writ in rem, is Australian Fishing Enterprises Pty Limited (“AFE”).
5 The plaintiff’s Statement of Claim claims, relevantly, the following:
“1. At all material times, the Plaintiff was employed as a diver and deckhand in the tuna fishing and farming industry in and around Port Lincoln in the State of South Australia.
2. At all material times, the Plaintiff was employed by South Australian Marine Farms Pty Limited (‘SAMF’).
3. At all material times, Australian Fishing Enterprises Pty Limited (‘AFE’) was the owner or charterer of, or in possession or control of, the vessels:
(i) ‘Monika’; and
(ii) ‘Boston Bay’.
4. At the time of the commencement of these proceedings, AFE was the owner of the vessel ‘Maria Luisa’.
5. From in or about May 1993 until in or about April 1994, the Plaintiff worked as a diver and deckhand on board the vessels referred to in paragraph 3 as well as the vessels ‘Belinda’, ‘Craigmin’, ‘Kosmo’ and ‘Doongarra’ (the ‘Vessels’).
6. The Vessels were used to fish for and farm tuna in and around Port Lincoln.
…
23. During the course of the Plaintiff’s employment, it was part of the Plaintiff’s duties to dive during all such aspects of the tuna fishing and farming processes as they required the services of a diver.
24. At all material times, the Plaintiff was engaged in such work while working on the vessels referred to in paragraphs 3 and 5 herein.
25. During the period in which the Plaintiff was engaged in such work, and in the course of his employment, the Plaintiff developed severe, irreversible decompression illness.
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26. At all material times, AFE owed a duty of care to the Plaintiff.
…
27. The said injuries and loss and damage were occasioned to the Plaintiff by reason of the negligence or breach on the part of AFE, it servants or agents of its duty of care to the Plaintiff.”
6 Everdene Pty Limited (“Everdene”) is the registered owner of the defendant ship, “Maria Luisa”, and was the registered owner at the time these proceedings were commenced (24 April 2001). Everdene is a wholly-owned subsidiary of AFE.
7 By its notice of motion, Everdene has sought an order dismissing the proceedings, on the ground of want of jurisdiction, principally on the footing that the plaintiff has not satisfied the requirements of s 19 of the Act (thereby allowing the prosecution of these proceedings as surrogate proceedings).
8 Section 19 of the Act provides:
“19. A proceeding on a general maritime claim concerning a ship may be commenced as an action in rem against some other ship if:
(a) a relevant person in relation to the claim was, when the cause of action arose, the owner or charterer of, or in possession or control of, the first-mentioned ship; and
(b) that person is, when the proceeding is commenced, the owner of the second mentioned ship.”
9 Section 3 of the Act provides that “relevant person” in relation to a maritime claim means a person who would be liable on the claim in a proceeding commenced as an action in personam.
10 Everdene also submits that the nature of the claim, as pleaded, is not within s 4(3)(c) or (d) of the Act and, in particular, the plaintiff has no right to bring proceedings against the surrogate “Maria Luisa” in relation to damages said to have been suffered whilst working on vessels other than “Monika” or “Boston Bay”.
11 It is not in dispute that in proceedings of this kind, jurisdiction is to be determined as a preliminary matter, since a proceeding shall not be commenced as an action in rem except as provided by the Act (s 14). In the present circumstances, only s 19 could confer jurisdiction. A challenge to the jurisdiction conferred by s 19 can only be resisted by establishing the facts on which it depends on the balance of probabilities, on the totality of the evidence (see Owners of the Ship “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404 at 426).
The Jurisdictional Issues for Determination on Everdene's Motion
12 The issues are:
First issue: whether s 19 of the Act was satisfied
13 Here, two questions arise:
(a) Has the plaintiff satisfied the Court, on the balance of probabilities, that AFE was the owner, charterer or person in possession or control of “Monika” and “Boston Bay” between May 1993 and April 1994, so that s 19(a) was satisfied?
(b) Has the plaintiff satisfied the Court, on the balance of probabilities, that AFE was the owner of “Maria Luisa” on 24 April 2001 so that s 19(b) was satisfied?
Second issue: whether s 4(3) of the Act was satisfied
14 Here two questions arise:
(a) Has the plaintiff satisfied the Court that his claim, properly characterised, is a “general maritime claim” within s 4(3)(c)?
(b) Has the plaintiff satisfied the Court that his claim, properly characterised, is a “general maritime claim" within s 4(3)(d)?
Conclusions on the Motion
15 It will be convenient, at this stage, to consider the first issue.
Was AFE the owner, charterer or person in possession or control of “Monika” and “Boston Bay” between May 1993 and April 1994 (s 19(a))?
16 Everdene has now admitted, in answer to interrogatories, that AFE was the charterer of these vessels in this period.
Was AFE the owner of “Maria Luisa” on 24 April 2001 s 19(b)?
17 Notwithstanding that Everdene was the registered owner of the vessel at this date, the plaintiff contends that AFE was then its beneficial owner. For its part, Everdene accepts, in principle, that whilst “owner” in s 19 can include “beneficial owner”, in the absence of other evidence, the registered owner will also be taken to be the beneficial owner. Everdene further contends that, although it is a wholly-owned subsidiary of AFE, that, of itself, does not establish that AFE beneficially owns “Maria Luisa”.
18 Central to the respective arguments of the parties was the decision and reasoning of Sheppard J in Malaysia Shipyard v “Iron Shortland” (1995) 131 ALR 738, where his Honour considered the potential operation of s 19 in the circumstances of that case, as follows. The “Iron Shortland”, chartered by BHP Transport Pty Limited (“BHPT”), was arrested on the application of the plaintiff, who claimed that the “Iron Shortland” was a surrogate ship for the “Newcastle Pride”. The registered owners of the two ships were wholly-owned subsidiaries of Capeco Maritime NV. The plaintiff contended that Capeco Maritime NV was the beneficial owner of both vessels and that s 19 permitted an action against the “'Iron Shortland”.
19 Although Sheppard J held (at 749) that in s 19 “owner” includes a beneficial owner, the evidence did not establish to the Court’s satisfaction that Capeco Maritime NV beneficially owned the “Iron Shortland”. Accordingly, s 19 could not apply.
20 In so concluding, Sheppard J noted (at 748) that the Law Reform Commission’s report (Australian Law Reform Commission Civil Admiralty Jurisdiction Report No. 33, 1986) recommended that the Act should not make special provision with respect to the “corporate veil”, or in the definition of “related” or “associated” companies.
21 Sheppard J said (at 758):
“I have given due consideration to the totality of the evidence which there is on the question whether Capeco Maritime is the beneficial owner or the true owner of the Iron Shortland. Having reflected on the matter, I have reached the conclusion that the evidence does not establish that it is. In relation to the question whether Capeco Maritime was the beneficial owner of the Newcastle Pride, I put the placing memorandum aside because I considered that the statements in it were ambiguous. They were consistent with the ownership of the vessels being in the various subsidiaries so that the usual situation of there being a holding company and a number of subsidiary companies was the one which was contemplated. On the basis of the authorities earlier referred to, particularly Macaura, there is no warrant for holding that the holding company, ie Capeco Maritime, has, upon the basis of the statements made in the placing memorandum, a beneficial interest in the vessels themselves as distinct from the beneficial interest in the shares in the subsidiary companies. Unlike the position which existed in relation to the Newcastle Pride, there is, in the case of the Iron Shortland, no evidence of any insurance in the name of Capeco [Maritime] or the Capeco group of companies and no technical management agreement describing Capeco Maritime as an owner of the vessel. There is nothing which corresponds with the agreement concerning the repairs done to the Newcastle Pride which again described Capeco Maritime, at least indirectly, as the owner of that vessel.”
22 Having earlier (at 755 – 756) noted that, given the absence of evidence from BHPT, and the absence of Capeco Maritime NV from the proceedings, the plaintiff had sought to rely on the rule in Jones v Dunkel (1959) 101 CLR 298, his Honour went on to say (at 759):
“If there had been any evidence at all of beneficial ownership by Capeco Maritime I would not have hesitated to find the issue of ownership favourably to the plaintiff. For reasons earlier mentioned, I would have had every confidence in doing so because of the absence from the case of both Capeco Maritime and Everbird. But, regrettable though it may be from the plaintiff’s point of view, I do not regard any of the material as establishing or tending to establish beneficial ownership by Capeco Maritime.”
23 Of the significance of this decision, one commentator (Martin Davies in “Transport” (1996) 24 Australian Business Law Review 76 at 79) has observed:
“The significance of the decision in the Iron Shortland is that it appears to offer claimants some hope of circumventing the problem that no ship can be a surrogate for another when all ships in the fleet are owned by one-ship companies. Although it does not lift or pierce the corporate veil, it allows the claimant to peer through it if it is sufficiently diaphanous.
Herein lies the problem, though. The claimant must do the peering, so to speak. It must show that the fleet ‘owner’ beneficially owns the ships and not merely the shares in the companies that own the ships. To do this, it must effectively show that the registered owner is a mere shell, and that the effective disposition of the ship lies with the fleet owner, not the one-ship companies.”
24 In the present case, the plaintiff also relies on the rule in Jones v Dunkel, in the light of the absence of evidence from the defendants.
25 The question for a determination here is one of mixed fact and law. It is necessary then, to refer to the evidence upon which the plaintiff relies, which may be summarised as follows:
· AFE owned all the units issued by Everdene as trustee of the “Maria Luisa” Unit Trust (“the Trust”) and was paid all the Trust income distributed to unit holders.
· AFE owned all the shares issued by Everdene.
· AFE’s officers (i.e. directors and company secretary) were also Everdene’s. They also have the same registered office, the same principal place of business, and the same telephone number.
· AFE was the principal lender to Everdene.
· “Maria Luisa’s” insurance records showed AFE as the operator of the vessels. Specifically, the plaintiff relies upon an insurance broker’s invoice, addressed to AFE, describing “the insured” as AFE and, in the insurance details, stating that “Maria Luisa” is owned by Everdene and operated by AFE.
· AFE paid the insurance premiums in respect of “Maria Luisa’s” marine hull insurance.
· AFE paid for maintenance and repairs of “Maria Luisa”.
· Everdene and AFE had claimed to have entered into an oral demise charter. In its income tax returns Everdene, as trustee for the Trust, stated that its “main business activity” was “fishing vessel charter”. For the year ended 30 June 2000 (consistently with the position in earlier years), the Trust’s only income ($40,000) was described as “vessel charter fees”.
26 From this evidence, the plaintiff submits that, although there is no suggestion of a “sham” transaction, nonetheless it should be inferred, generally, that AFE was, effectively, operating a fishing fleet; and, specifically, that AFE was, to all intents and purposes, the owner of “Maria Luisa”.
27 For its part, Everdene contends, first, that in the absence of any suggestion of sham, no inference of beneficial ownership is available on these facts; and, secondly, as a matter of law, a demise charter does not convey beneficial ownership. It will be convenient to consider the latter proposition first.
28 On behalf of the plaintiff, reliance is placed upon the following observations of Cockburn CJ in Sandeman v Scurr [1866] 2 QB 86 (at 96):
“[I]n construing a charterparty with reference to the liability of the owners of the chartered ship, it is necessary to look to the charterparty, to see whether it operates as a demise of the ship itself, to which the services of the master and crew may or may not be superadded, or whether all that the charterer acquires by the terms of the instrument is the right to have his goods conveyed by the particular vessel, and, as subsidiary thereto, to have the use of the vessel and the services of the master and crew.
In the first case, the charterer becomes for the time the owner of the vessel, the master and crew become to all intents and purposes his servants, and through them the possession of the ship is in him. In the second, notwithstanding the temporary right of the charterer to have his goods loaded and conveyed in the vessel, the ownership remains in the original owners, and through the master and the crew, who continue to be their servants, the possession of the ship also.”
29 The plaintiff further relies upon observations of Slicer J in Swards v The Owners of the Ship “Pyungwha 36” [1996] BC 9605497 as follows (at 2 – 3):
“In ‘The Father Thames’ [1979] Lloyds R364, Sheen J determined that a demise charterer did not beneficially own ‘as respects all shares therein’ a vessel. That case involved the existence of a ‘lien’ and depended in part on the terms of the Administration of Justice Act 1956 (UK), s1(1)(d) and Article 3 of the International Convention relating to the Arrest of Seagoing Ships. In reaching his decision, Sheen J declined to follow an earlier decision of Brandon J in Medway Drydock and Engineering Co Ltd v mv Andrea Ursula [1973] QB 265 but he did not preclude a demise charterer from being regarded as an owner. As he stated at 370:
‘The decision that the word ‘owners’ includes charterers by demise when that word is used in connection with limitation of a shipowner’s liability lends support to the view that charterers by demise should be treated as owners for the purpose of a maritime lien.’
That view is consistent with the approach taken by the House of Lords in Sir John Jackson Ltd v Owners of the SS ‘Blanche’ [1908] AC 126 when, in considering whether the word ‘owner’ in the Merchant Shipping Act 1894, s503, included a charter by demise, Lords Loreburn and Atkinson pointed out that many sections of the Act required the word ‘owner’ to be construed so as to include a charterer by demise because on any other construction the sections would be absurd and irrational. As Lord Loreburn stated at 130:
‘... The word ‘owner’ is used in very many sections. Sometimes it means registered owner, which is, indeed, the primary sense. Sometimes it must also include beneficial owner. And in other parts it seems to me that it must of necessity also include a charterer by demise who has control of the ship and navigates her with his own master and crew. Otherwise the operation of the Act becomes impracticable’
and with respect to the provision of services and materials, Lord Atkinson stated at 132:
‘Again, for stores ordered by the master of a ship chartered by demise, or for damage done to goods shipped in such a ship under bills of lading signed by him, the charterer is liable ‘as owner’: Frazer v Marsh (1811) 13 East, 238; Colvin v Newbury 1 Cl and F 283.’”
30 Slicer J went on to say (at 3 – 4):
“Although English courts have determined that the term ‘owner’ in the Supreme Court Act 1981 (UK), s21(4)(b) does not extend to someone with an equitable interest in the ship (The Evpo Agnic [1988] 1 WLR 1090), such cases concerned the right to bring an action in rem against any other ship of which a relevant person was the beneficial owner and determined that such did not extend to a ship owned by a ‘sister company’ of the company owning the ship in connection with which the claim arose. Likewise the decision in I Congreso Del Partido [1978] 1 QB 500, involving as it did the issue of sovereign immunity, depended on the distinction between equitable ownership and operation and control and as such does not avail the applicant’s contention.
Such cases involving substantive law should not be applied to questions of procedure such as arise here. The Australian legislation makes no reference to beneficial ownership preferring to define the term ‘interested person’ by reference to relationship with the vessel. In considering the application of the Act, s19, Sheppard J in ... ‘Iron Shortland’ ... held [at 749]:
‘To give the section an operation only in respect of ships that are registered seems a very narrow approach .... . An unregistered ship might be the cause of very serious loss or damage. Why should the ability of a plaintiff to take advantage of the remedies provided for in the Act depend on the chance of registration? It is true that most ships will be registered, but some may not be. And if such a plaintiff were able to identify the real or beneficial owner, what in principle should stand in the way of such a plaintiff proceeding against it, even if there is a nominee or trustee between the vessel and the true owner?’.”
31 Slicer J concluded (at 4):
“There is no reason why the term ‘owner’ appearing in the writ should not encompass a beneficial owner, a term which would include a person having ownership limited by time, namely a demise charterer. A demise charterer is sometimes described as owner ‘pro hac vice’, ie, for this occasion (I Congreso Del Partido (supra) at 538). The writ is in accordance with the form prescribed by the Rules and is directed at a person identifiable by reference to legal status.”
32 For its part, Everdene submits (and I accept) several propositions of law, essentially as follows:
· In the absence of other evidence, the registered owner will also be taken to be the beneficial owner (see “Iron Shortland” at 749).
· Although reference is made in “Iron Shortland” to “real” or “true” owner, it is clear from the context that Sheppard J intended these expressions to be synonymous with the (technically correct) description “beneficial”, that is, owner in equity.
· The fact that Everdene is a wholly-owned subsidiary of AFE cannot, of itself, establish in AFE beneficial ownership of any asset owned by Everdene (see “Iron Shortland” at 744, 748). In the absence of sham (not alleged) or fraud (not seriously suggested), the Court cannot “lift” the “corporate veil” here.
· A person is not a “beneficial owner” merely by being in possession as operator and manager, or under a demise charter. Thus, in I Congreso del Partido [1978] 1 QB 500, Goff J (as he then was) (after noting (at 538) that Brandon J in The “Andrea Ursula” had not had the benefit of full argument, said (at 538):
“I start with the statute, and the words with which I am particularly concerned, and which I have to construe in the context of the statute, are ‘beneficially owned as respects all the shares therein.’ In my judgment, the natural and ordinary meaning of these words is that they refer only to such ownership as is vested in a person who, whether or not he is the legal owner of the vessel, is in any case the equitable owner, in other words, the first of the two meanings of which Brandon J. thought the words to be capable. Furthermore, on the natural and ordinary meaning of the words, I do not consider them apt to apply to the case of a demise charterer or indeed any other person who has only possession of the ship, however full and complete such possession may be, and however much control over the ship he may have.”
33 Goff J went on (at 539) to distinguish the observations of Cockburn CJ in Sandeman v Scurr:
“It is true that a demise charterer has in the past been described variously as ‘owner pro hac vice:’ see, for example, Frazer v. Marsh (1811) 13 East 238, 239, per Lord Ellenbrough C.J., The Lemington (1874) 2 Asp.M.L.C. 475, 478, per Sir Robert Phillimore, and The Tasmania (1888) 13 P.D. 110, 118, per Sir James Hannen P.; or as a person who is ‘for the time the owner of the vessel:’ see Sandeman v. Scurr (1866) L.R. 2 Q.B. 86, 96, per Cockburn C.J.; or as a person with ‘special and temporary ownership:’ see The Hopper No. 66 [1908] A.C. 126, 136, per Lord Atkinson. I doubt however if such language is much in use today; and its use should not be allowed to disguise the true legal nature of a demise charter. Furthermore, no case has been drawn to my attention, and I am aware of [none], in which a demise charterer has been described as a ‘beneficial owner.’...”
34 Goff J added (at 539):
“Furthermore, I can find nothing in the remainder of the statue to cause me to reject the natural and ordinary meaning of the words; certainly, I would not construe other references in the statue to ‘ownership’ – as in section 1 (1) (a) – or ‘co-owner’ – as in section 1 (1) (b) – as referring in any way to demise charterers.”
35 In The “Father Thames” [1979] 2 Lloyd’s Rep 364, Sheen J (also having had full argument) joined Goff J in declining to follow The “Andrea Ursula” (see at 366 – 367).
36 The correct position has been summarised by James Allsop SC (as he then was) as follows (in “Beneficial Ownership of Ships and Arrest”, Papers from the 27th Annual General Meeting and Conference of the Maritime Law Association of Australia and New Zealand, 5-9 August 2000, Queenstown, New Zealand (at 7)):
“Before the introduction in 1981 in the English Act of demise charterer arrest in s.21(4)(i), there was a difference of authority as to whether the phrase ‘beneficial owner’ in s.3(4) of the Administration of Justice Act, 1956, or perhaps more accurately, the phrase ‘beneficially owned as respects all the shares therein’, included demise charterer. Hewson J in The St. Merriel [1963] P.247, Goff J in I Congresso Del Partido [1978] QB 500, Sheen J in The Father Thames [1979] 2 Lloyd’s Rep 364 and the Singapore Court of Appeal in The Permina 3001 [1979] 1 Lloyd’s Rep 327 were of the view that it did not. Brandon J in The Andrea Ursula [1973] QB 265 was of the view that it did. In the present context of the structure of all the Acts which include demise charterer arrest: s.21(4)(i) of the English Act, s.18 of the Act, and s.5(2)(b)(i) and (ii) of the NZ Act (the NZ Act extending to arrest of a surrogate ship which is on charter by demise; cf. article 3(4) of the 1952 Convention), it appears clear that ‘owner’ or ‘beneficial owner’ is not intended to encompass demise charterer: The Union Darwin [1983] HKLR 248; The Loon Chong [1982] 1 MLJ 212; and Colombo Drydocks v The Ship Om Al-Quora [1990] 1 NZLR 608.”
37 Accordingly, I must respectfully disagree with Slicer J.
38 AFE’s rights under the trust deed constituting the Trust do not confer upon it equitable ownership in the Trust’s individual assets (see e.g. Official Receiver in Bankruptcy v Shultz (1990) 170 CLR 306 at 313 – 314); MSP Nominees Pty Ltd v Commissioner of Stamps (SA) (1999) 198 CLR 494 at 509).
39 I turn next to consider the facts, since even if I accept (as I do) each of the above abstract legal propositions, it may not necessarily follow that there is no basis on which, on the facts disclosed by the evidence, an inference might be drawn that AFE should be regarded in equity as the owner.
40 Whilst I accept that it is open to the plaintiff to point to facts or circumstances in the evidence from which a conclusion of beneficial ownership residing in AFE may, in legal theory, be drawn, I have difficulty actually locating such facts or circumstance here. So far as all the formal records go, as has been noted, they are consistent with full (that is, both legal and equitable) ownership residing in Everdene. So far as the informal material is concerned, this is, I think, at best equivocal. For example, the fact that both AFE and Everdene have common officers certainly indicates a source of control by AFE over Everdene, which is reinforced by AFE’s role as Everdene’s financier. But all of these considerations are still consistent with full ownership remaining with Everdene for reasons other than the avoidance of liability to creditors. When regard is had to the whole of the circumstances relied upon by the plaintiff (as they have been noted earlier), one is left with an overall impression that those involved set out to put in place an infrastructure whereby Everdene and AFE were to be assigned different roles, and that Everdene’s role was to act as the sole repository of the full ownership of “Maria Luisa”.
41 In the absence then of any suggestion of sham, or a fraud on creditors, it must follow, in my opinion, that, even it be assumed that any witness available to Everdene or AFE would not, if called, have assisted their case, the plaintiff has still failed to show that AFE was the owner in equity of “Maria Luisa” for the purpose of s 19(b). Accordingly, this Court lacks the surrogate jurisdiction sought to be invoked by the plaintiff by his writ in rem. The principal proceedings must therefore be dismissed for want of jurisdiction with costs. I so order.
ORDERS
42 The principal proceedings are dismissed, with costs.
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I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont. |
Associate:
Dated: September 2002
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Counsel for the Plaintiff: |
Mr R Gye and Mr S Benson |
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Solicitor for the Plaintiff: |
Conway Leather Shaw |
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Counsel for the Defendant: |
Mr G Nell and Ms F Rogers |
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Solicitor for the Defendant: |
Norton White |
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Date of Hearing: |
30 and 31 May 2002 and 10 July 2002 |
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Date of Judgment: |
13 September 2002 |
